Graham v. Pennsylvania R. Co.

• Decision Date: 24 April 1889
• Citation: 39 F. 596
• Parties: GRAHAM v. PENNSYLVANIA R. CO.
• Court: U.S. District Court — District of New Jersey

39 F. 596

GRAHAM v. PENNSYLVANIA R. CO.

United States Circuit Court, D. New Jersey.

April 24, 1889

William S. Gummere and Herbert W. Knight, for plaintiff.

James B. Vredenburgh, for defendant.

WALES J., (orally.)

I have concluded to grant this motion, and will briefly state the reasons for doing so. The material facts of the case are quite clear. The plaintiff, at the time of the accident when he received the injuries complained of, was a passenger on board a ferry-boat belonging to the defendant company, and had been in the daily habit of crossing the ferry for a great many years,-- 19 or 20 years,-- and had frequently left the boat in the same way as he did on the day he was hurt; that is, by the horse gangway, instead of by one of the footways provided for passengers. On the opening of this case it occurred to me that the plaintiff, at the time of the accident, had put himself in a place where he had voluntarily exposed himself to the risk of getting hurt, and the only reason that constrained me from granting a nonsuit was that I thought perhaps the company, by its acquiescence, had permitted and encourage passengers to leave or disembark from the boat in the manner the plaintiff had done, and that there might have been gross and inexcusable negligence on the part of the deck-hand who unhooked the chain and threw it aside just as the plaintiff was stepping over it. Exactly how and when the chain was taken down has not been satisfactorily proven. There is some conflict in the testimony on this point. But, admitting that the chain was thrown off while the plaintiff was astride of it, after all, did he not assume the risk, and directly contribute by his own act and want of care to the accident? It will not be disputed that if this were so he has no right to recover; and where the evidence is so clear that if the jury should find a verdict for the plaintiff the court would be compelled, in the exercise of a sound discretion, to set the verdict aside, it will be its duty, under such circumstances, to direct the jury to render a verdict for the defendant. Now, it is true that no public notice was given-- no prohibition, no remonstrance, no regulation of any kind--to prevent passengers from placing themselves in front of the chain, or from stepping over it, and going off the boat by the horse-way nor does it appear that passengers were ever remonstrated with by any of the officers or agents of the company, but they were allowed to pass out there freely after the gates had been removed. but then the question is suggested, are not such visible and obvious objects sufficient notice to the passengers that they must not go out by that way, and that they must take all the risks if they do? Mr. Graham attempted to step over the chain before it had been unhooked, and either stumbled and fell, or was thrown down by the unhooking of the chain while he was astride of it, and in either case contributed to the accident by being in a place which he knew was appropriated for the use of horses and vehicles, and not for passengers.

The question is one of contributory negligence. There are two gangways provided by which passengers can safely leave the boat, and if a passenger, in his eagerness and haste to get on shore, leave one of these side gangways and go into the middle gangway, where he has no business to go, is he not responsible for his own negligence and want of reasonable care? It appears to me to be a very clear case of contributory negligence. The precautions taken by the company, I think, were ample. There are the gates which, as I understand from the testimony, are never removed until after the boat has been fastened to the bridge. The gates are first opened, and...